Court Considers Racial Intent of Two States' Anti-Busing Laws

Washington--Statewide anti-busing initiatives in Washington and
California were racially motivated and thus violated the
equal-protection rights of minorities, the U.S. Supreme Court was told
last week by lawyers seeking to have the statutes declared
unconstitutional.

In the same way that the old segregationist laws of the South forced
blacks to the "back of the bus," the California law amounts to
"relegating minorities to the back of the courthouse under the subtle
laws of the 'New North,"' argued Laurence H. Tribe, a Harvard
University constitutional scholar representing the minority-group
plaintiffs in the Los Angeles school-desegregation case.

The plaintiffs in the 19-year-old Los Angeles case, Crawford v.
Board of Education of the City of Los Angeles (81-38), are challenging
Proposition 1, a 1979 amendment to the state constitution that relaxed
the state's definition of illegal segregation and forbade state courts
to order busing unless it could be proven that the segregation was
intentional.

From 1963 until the enactment of Proposition 1, California's
definition of segregation exceeded the standards established by the
U.S. Supreme Court. Whereas intent to segregate must be proven before
the federal courts may issue busing orders, any segregation, however it
came about, was held to violate the California constitution.

It was under these old state standards that busing was ordered in
Los Angeles, beginning in 1978. After Proposition 1 was enacted and
found constitutional by state courts, the mandatory busing plan in the
nation's third-largest district was dismantled.

'Dual Judicial System'

Proposition 1, the Los Angeles plaintiffs claim, creates a "dual
judicial system" in the state--a first-class system for all issues
except school desegregation and a second-class system with limited
remedies for minorities seeking desegregation.

The Washington case, Seattle School District No. 1 v. Washington
(81-9), while it also involves an anti-busing law enacted by
referendum, turns on the state's right to bar school districts from
desegregating on their own. The California amend-ment, by contrast,
allows locally initiated desegregation plans.

The school boards of Seattle, Tacoma, and Pasco--without having been
ordered to do so--decided in the 1970's to alleviate racial isolation
in their schools by reassigning students for racial balance.

In 1978, the state's voters approved Initiative 350, which forbids
districts to bus students beyond the schools "next nearest" to their
homes except for certain purposes--including health, safety, and
special educational needs.

Since the Washington law allows busing for some purposes, but
prohibits it for desegregation unless ordered by a federal court, "race
is written all over the face of Initiative 350," argued Michael Hoge,
attorney for the Seattle board.

The Washington law has been found invalid by two federal courts and
has not been put into effect, Mr. Hoge said. If it were, he claimed,
the Seattle schools would become more segregated than they were before
the locally initiated plan was put into effect.

Under questioning from Chief Justice Warren Burger, Mr. Hoge said he
did not necessarily equate opposition to busing with "discriminatory
purpose."

Discriminatory Intent

But Mr. Hoge noted that the U.S. District Court in Seattle, in
holding the statute invalid, found that discriminatory intent was at
least one factor in the passage of the referendum. (The U.S. Court of
Appeals for the Ninth Circuit, which also found the law
unconstitutional, did not address the question of discriminatory
intent, but did say that the statute implicitly contained a "racial
classification.")

"The impact was a certainty and it was known in advance," Mr. Hoge
maintained. "The drafting history and the campaign history show clear
intent only to stop desegregation busing."

Lawyers defending the two state statutes said it could not be proven
that they were aimed exclusively at ending desegregation. Accordingly,
the lawyers argued, the laws do not treat minorities as a separate
class and are not constitutionally suspect.

California's Proposition 1 "is not limited to school
desegregation,'' said G. William Shea, attorney for the Los Angeles
school board. "Nowhere is there any limitation that would not involve
overcrowded schools or handicapped students."

The Los Angeles plaintiffs "have no evidence of discriminatory
purpose," Mr. Shea continued. "What they really point to is a
miscellaneous collection of newspapers, campaign literature, and
historical treatises. None of that was admitted below [in the
California Supreme Court].... The petitioners had every opportunity to
offer evidence of this discriminatory purpose, and they offered
none."

Relevant Language

Similarly, U.S. Solicitor General Rex E. Lee, arguing on behalf of
the Justice Department in favor of Proposition 1's constitutionality,
said the plaintiffs had failed to show that the amendment "applies only
to desegregation."

"The relevant language simply will not yield to their rewriting,"
Mr. Lee added.

Mr. Lee rejected that argument and contended that the Court might
actually harm integration efforts if it invalidates the California
amendment. "States would no longer feel free to experiment" with
techniques that exceed federal requirements, Mr. Lee said, if they
believed they would be locked into the stricter standards even if they
did not work.

'Discrete Choice'

Kenneth O. Eikenberry, Washington State's attorney general, argued
that the state's anti-busing law "is simply a discrete choice by the
voters of the state of Washington to accommodate the benefits of
neighborhood schools and the benefits of racial diversity." Because it
allows districts to assign students to the "next-nearest" school, not
only to the school nearest their homes, the law would allow for
substantial integration, he contended.

Because school districts in Washington are created by the state, he
said, they are subject to state man-dates. The legislature, he said,
"is a super school board."

Mr. Eikenberry admitted, under questioning by Associate Justice
Thurgood Marshall, that Initiative 350 was enacted largely in reaction
to Seattle's desegregation efforts. But, he added, "It is important to
distinguish between discriminatory intent and ..."

"There are different kinds of discriminatory intent?" Justice
Marshall broke in. "Some are good and some are bad?" When Chief Justice
Burger noted that the Court has never said that any particular racial
mix is required by the Constitution, Justice Marshall replied, "Is
there any law that says Seattle can't do that?"

In an impromptu news conference after the oral arguments were
presented to the Court, Mr. Eikenberry said that Initiative 350 "is
only race-conscious in that the Seattle [desegregation] plan is
race-conscious."

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